Abstract

There has been a remarkable increase during the last decade in the imposition of overlapping civil, administrative, and criminal sanctions for the same misconduct,' as well as a steady rise in the severity of those sanctions.2 In response, defendants have balked, arguing that legislators and the juries, judges, prosecutors, and regulators who apply legislatively authorized sanctions have overstepped the bounds of punishment permitted by the Constitution. Claiming that their penalties violate the DoubleJeopardy, Due Process, Excessive Fines, and Cruel and Unusual Punishments Clauses in the Bill of Rights, civil and criminal defendants are prompting courts to reevaluate constitutional limits on excessive and successive penalties. Over the past six years, the United States Supreme Court has addressed some of these challenges, but its decisions have been tentative or contradictory.
The resulting uncertainty surrounding constitutional limits on punishment is most troublesome in cases in which defendants face cumulative or successive penalties for the same conduct. In one or more proceedings, defendants may be convicted of multiple criminal charges, subjected to both civil and criminal penalties, punished by more than one state or by both state and federal governments, or ordered to pay multiple punitive damage awards that are shared between the winning plaintiffs and the states in which plaintiffs bring suit.
In this Article, I propose an approach for evaluating when these overlapping penalties exceed constitutional limits-an approach that recognizes- that the various guarantees of the Fifth, Eighth, and Fourteenth Amendments must be considered together, as a forest rather than as separate free-standing trees. I begin with the premise that the contours of constitutional limits on the amount of punishment that can be inflicted for a particular wrong, traditionally a part of Eighth Amendment and due process law, are inseparable from the constitutional limitations on the frequency with which an offender can be punished for that wrong, typically rooted in double jeopardy doctrine. The two forms of regulation operate in tandem to regulate the totality of punishment.